Should I Refuse to Take a Test If I’m Accused of Driving Drunk?
October 25th, 2018 by McNeely | Stephenson
Indiana law is written to punish those refusing to take breath, blood or urine tests to determine if they were driving under the influence, or, as Indiana law puts it, operating while intoxicated (OWI). You may feel the punishment for refusing to submit to a test is the lesser of two evils compared to what may happen if you’re charged with OWI. But that may not be the case.
Indiana law requires suspects arrested of OWI to take a breath, blood, or urine test if they’re asked to. This is based on the state’s “implied consent” law. It states that those lawfully arrested for driving under the influence have shown their consent to testing by being on an Indiana public road.
You must take the tests the officer requests unless you’re willing to face the punishment for refusal. If you were involved in an accident and are unconscious, a blood test could be taken when you’re incapable of communicating your refusal.
If you refuse the test, your driver’s license can be suspended for a year. If you’ve been convicted of refusing an OWI test in the past, that suspension can be two years. Conviction of OWI carries with it a six-month license suspension. Depending on the circumstances, after an OWI that suspension may not be total and may allow for some exceptions, such as driving to work. It may be more difficult to get such an exception if you refuse to take a test.
After your arrest and refusal, the officer should warn you of the suspension, if he or she hasn’t already done so. You can change your mind and submit to it. If you don’t, your license is suspended and a hearing should be set within 20 days of your arrest. At the hearing you can state your case (or, if you are wise, the criminal defense attorney you’ve retained will state your case) why your license should be reinstated.
There are potentially more penalties for an OWI than for a test refusal, including possible jail time, community service and enrollment in an alcohol deterrent program. You can still be convicted of OWI without a test being used. The fact that you refused to take the test can be used against you along with other evidence the police may have gathered (such as erratic driving behavior, the smell of alcohol, the presence of open alcohol containers in the vehicle, slurred speech, responsibility for an accident).
By refusing to take the test, you may end up with the worst of both worlds. Your license could be suspended for a year (if this is a first offense) and the police may obtain a search warrant to test your blood anyway. You can’t refuse to have the test taken if the search warrant request has been granted. If your blood alcohol level is more than the legal limit, you can be charged with OWI.
You may think refusing to take the test would be the thing to do to lessen the harm that you may need to suffer, but, depending on the circumstances, that refusal may do more harm than good.
McNeely Stephenson has faithfully served the people and communities of Indiana for several years in a variety of criminal defense cases and will help you create a strategy that gives you the chance for the best possible outcome. With offices in New Albany and attorneys who are licensed to serve the Kentuckiana area, we have the knowledge, experience and resources to help. To ask a question or to set up a consultation, contact us today.